DPP -v- Brian McGinley, [2013] IECCA 7 (2013)

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONSRespondent-and-

BRIAN MCGINLEYApplicant

Judgment of the Court of Criminal Appeal delivered the 14th day of March 2013 by Mr Justice Fennelly

The applicant has applied for leave to appeal against his conviction on 5th November 2010 at Tullamore Circuit Criminal Court on one count of aggravated burglary pursuant to Section 13 (1) of the Criminal Justice (Theft and Fraud Offences) Act, 2001. The trial took place before His Honour judge Kennedy and a jury. The verdict of guilty was by majority decision of 10:2. The applicant also appeals against severity of the sentence of ten years imprisonment imposed on 1st December 2010.

The crime

The crime of aggravated burglary was committed by four men wearing balaclavas at the home of Mr and Mrs Damien Kilmartin at Ladyswell, Glasson, Athlone, County Westmeath, on the evening of Sunday 13th February 2005. The case against the applicant depended exclusively on DNA analysis linking him to a blood stain found at the scene. The raiders wore balaclavas and gloves. No fingerprints were found.

Mr Kilmartin had a service station and grocery in Athlone. It seems from the evidence that the object of the crime was the takings from the business. However, Mr Kilmartin had, in fact, lodged the takings at the bank safe in Athlone earlier in the day.

Mr Kilmartin was at home on the Sunday evening with his wife and three children, the eldest of whom was then 15. He had a BMW three-door hatch back, silver in colour, which he had driven to various places during the day. He went to his golf club. He bought some groceries at his own shop and put them in the boot of the car. He watched a rugby match at a pub and went home at about six o’clock. He parked the car around the back of the house and took the groceries out of the car. He closed down the boot and went in the back door. The family had dinner and watched some television.

At about eight o’clock one of the family dogs began barking aggressively. Mr Kilmartin went towards the back door. This was about 8:15 to 8:30 in the evening. The door was burst in and four men wearing balaclavas came into the house, carrying various implements, which Mr Kilmartin described as a sledge hammer and two iron bars. There was also a baseball bat. He was pushed back into the kitchen. He and his wife were made to kneel. There was shouting and roaring. The men asked: “where are the lodgements” and “where’s the cash.” They also asked: “where are the kids?” and “who’s in the house?” Mr Kilmartin said there were no lodgements: he had lodged the money earlier. They asked if there was a safe in the house. Mr Kilmartin said there was and offered to bring them to it. He led them upstairs to see it.

The men got the children down from upstairs. One of the men waved a knife which he took from a birthday cake. The safe was in an attic upstairs. Two men accompanied Mr Kilmartin to the safe. The other two remained downstairs. The men asked for a key to the safe, but there was none, as it had been lost. One of the men hit Mr Kilmartin. One of the men attacked the safe with the sledge hammer. They spent ten or fifteen minutes trying to open the safe but failed. They decided to take the safe with them.

They took all the family into a small bathroom. They took their mobile phones (except that of Mr Kilmartin’s father who had called to the house to collect a suitcase). Mr Kilmartin had his hands cable-tied. They also tied up Mrs Kilmartin and the children. The family heard loud noise as the raiders rolled the safe down the stairs. They asked and were told where to find the keys of the cars. They closed the family into the bathroom by tying the doorknobs on the outside.

Mr Kilmartin managed to break free from the ties on his hands and to phone the gardaí using his father’s mobile. They arrived after some fifteen minutes.

Mr Kilmartin went out to see what cars were gone. He saw that his car (the BMW) had been reversed up to within a few feet of the front door. His wife’s car was gone. The driver’s door of the BMW was open and the key was broken in the ignition. Mr Kilmartin then “noticed for the first time…a red stain on the left-hand side of the boot lid.” In cross-examination, he said that he recalled saying on an earlier occasion that there was blood on the boot of his car when he came out of the house. The gardaí told him to stay away from the car. They were preserving the scene.

In the course of the raid, the safe, containing some €8,000 in cash, and Mrs Kilmartin’s jewellery valued at some €80,000 to €100,000 were taken. Mrs Kilmartin’s jeep was taken and later found burnt out.

The Garda Investigation

Sergeant Patrick Tulley was stationed at Athlone. He received a call at about 9:30 to the effect that the Kilmartin family were being held hostage. He travelled to the scene accompanied by other members. When they arrived they opened the bathroom and cut the ties off the wrists of those who were still tied. They took steps to preserve the scene. Sergeant Tulley called Chief Supt Rattigan who arrived shortly afterwards.

Sergeant Tulley saw a bloodstain on the boot lid of Mr Kilmartin’s BMW. He described it as “fairly obvious.” He said: “you would notice it” and: “There was droplets of blood on the boot lid.” Garda O’Connor had drawn it to his attention and he, in turn, drew it to the attention of Chief Supt Rattigan, who noted: “blood on boot lid” in his notebook.” In cross-examination, Sergeant Tulley said: “you wouldn’t miss it” and “those droplets of wet blood stood out.” He also described it as “fresh blood.”

Garda Eva O’Connor also saw the blood and said that it was very obvious. It was “fresh blood” and it was “bright red on the car.”

Chief Supt Rattigan noticed “quite a large bloodstain on the wing” of the BMW. Garda Michael Hogan, attached to crime scene investigation at Athlone, also saw a “blood mark” on the left-hand corner of the boot lid when he went to investigate the scene on the following day.

Mr Aidan Beatty, who operates a towing and recovery business, at the request of the gardaí, took the BMW on a truck to his own premises at Castledaly. He locked it and kept it locked in a shed until the gardaí came to inspect it on the following Tuesday.

Garda Michael Hogan worked on crime scene investigation and gathered forensic evidence from crime scenes. He examined the crime scene, gathered evidence and took photographs. On 14th February, he examined the BMW at Mr Beatty’s premises. He saw the bloodstain on the boot lid. He took two lifts from the blood as well as a swab of the blood. These were attached to Cobex cards, marked and labelled with specific numbers. He handed these exhibits to Sergeant Mary Mangan on 23rd February.

Sergeant Mangan took these exhibits with her to Garda Headquarters in Dublin on 23rd February 2005. The purpose was to have them examined and analysed by the Forensic Science Laboratory. She there handed them to Ms Pauline Nixon who accepted them and signed a receipt.

Ms Nixon received the exhibits in a brown bag. A number of documents were completed in the course of the transfer and keeping of the samples. Counsel has not invited the Court to consider these. They have not been produced. Among other things, Ms Nixon assigned a Technical Bureau number and a laboratory reference number. She placed the exhibits in storage. On 3rd August 2005, she handed the exhibits to Dr Linda Williams, the forensic expert.

Over this time, the gardaí conducted widespread inquiries into the crime. They recovered some of Mrs Kilmartin’s jewellery. On 18th July, Inspector James Delaney arrested the applicant pursuant to s.4 of the Criminal Justice Act 1884. He was detained at Athlone Garda Station. During his detention, Inspector Delaney observed that he had a scar on his left index finger. He also took a sample of the applicant’s hair pursuant to statutory powers. He informed the applicant, in accordance with s. 2(4) of the Forensic Evidence Act 1990, that the hair sample was being taken for comparison with blood samples that had been recovered from the boot lid of Mr Kilmartin’s car and that it would go to prove or to disprove his involvement in the commission of the offence. Garda Ray Grennan, whose job was the collection of items of evidence from crime scenes, was in attendance and witnessed the taking of the sample. Inspector Delaney handed him the hair sample. Garda Grennan packaged and labelled it. He retained the sample in his possession until 21st July 2005, when he handed them to Garda Michael Hogan. Garda Hogan conveyed the sample to the Garda Forensic Science Laboratory in Dublin for analysis. He there handed it to Ms Margaret Kelleher, the forensic receptionist and executive officer at the Forensic Science Laboratory, who received it. Ms Kelleher completed a form as follows:

“I, Margaret Kelleher, of the Forensic Science Laboratory received one envelope labelled, ‘05/01558 N.H. v MJELR 21/7/05,’ which I labelled, 05/01558 Mr Kenny 21/7/05’” signed by her and dated 21/7/05.

On 28th July 2005, Ms Kelleher retrieved the sample from where it had been stored and handed it to Dr Linda Williams, the forensic scientist to whom the case had been assigned.

Dr Linda Williams, forensic scientist with a Ph D in biotechnology, worked on DNA. She found that the DNA profile obtained from the blood sample lifted from the car matched that of the appellant. She also performed a test known as the Kastle-Meyer test on the lifts attached to the cards, which, she found, was inconclusive as to the presence of blood.

The trial

The trial, before His Honour Judge Kennedy and a jury at Tullamore Circuit Criminal Court lasted eleven days. The charge was of of aggravated burglary pursuant to Section 13 (1) of the Criminal Justice (Theft and Fraud Offences) Act, 2001. That...